2016 (11) TMI 238 - MADRAS HIGH COURT

2016 (11) TMI 238 - MADRAS HIGH COURT - TMI - Classification of taxable services - activity of treatment under KKT scheme - Health Checkup and Treatment Services - appellant contended that the KKT is a Welfare Scheme introduced by the Government of Tamil Nadu for the benefit of those who cannot afford costly medical treatment and that will not construed as an Insurance Scheme, but a Welfare Scheme - Held that: - one fundamental error which has crept in the impugned proceedings is that the author .....

he Scheme has been examined in full, the respondent cannot come to a conclusion that the nature of transaction done by the petitioner would fall within the definition of section 65(105)(zzzzo) of the Finance Act - the Scheme propounded by the Government arrangement with STAR, the petitioner and the Government, conclusion could not have been arrived at and the case laws referred to could not have been made applicable without going into the facts and the terms of the subject schemes which may be d .....

g the counter affidavit filed by the respondents. 2. The order impugned in this Writ Petition is an Order-in-Original dated 29.04.2016, by which, the first respondent confirmed the demand for Service Tax, by classifying the nature of service rendered by the petitioner under the Health Checkup and Treatment Services as defined under section 65(105)(zzzzo) of the Finance Act, 1994, apart from demanding interest and levying penalty. 3. Under normal circumstances, the Writ Petition will not be maint .....

G.O.Ms.No.49 dated 04.02.2009, framed a Scheme Kalaignar Kaapittu Thittam (KKT), with a view to afford good medical treatment for the people in the lower income group, who were suffering from serious ailments, by providing treatment in Government as well as in private notified Hospitals. The Operative Guidelines of the Scheme was provided by a State Empowered Committee with the Chief Secretary as its Chairman and Heads of various Government Departments as its Members. The State Health Society w .....

rs. The Scheme contains various other aspects to it, which may not be necessary for deciding the controversy raised in this Writ Petition. 5. The first respondent issued a show cause notice dated 08.04.2015, alleging that the petitioner has contravened the provisions of the Finance Act, 1994, and the Rules framed therein and called upon the petitioner to show cause as to why the proviso to section 73(1) of the Finance Act should not be invoked to demand service tax beyond the normal period and a .....

y medical treatment and that will not construed as an Insurance Scheme, but a Welfare Scheme. The term Insurance used in the Welfare Scheme is a misnomer and thus would not fall under the definition of the term Insurance . The Welfare Scheme has not been approved by the Insurance Regulation and Development Authority of India (IRDA) and therefore, this is not an Insurance Policy in the eye of law; that KKT is not an Insurance Policy, but only a Welfare Scheme and thus ought not to have been taxed .....

d in the surgery, which are to be excluded from the taxable value. Therefore, it was contended that the notice proposing to impose service tax towards the service by way of treatment under KKT scheme is erroneous and beyond jurisdiction as it would not fall under section 65(105)(zzzzo) of the Finance Act, and there is no liability to pay service tax. Further it is contended that the levy of service tax is not warranted and the allegation of suppression and imposition of penalty is not sustainabl .....

they are not liable to be brought under the Service Tax Net and it appears that at no point of time, there was any concession availed by the petitioner on the quantum of the amount which has to be considered for the purpose of Health Service Tax. 8. The learned Additional Commissioner has made an elaborate exercise by referring to the statutory provisions and in particular section 67(1) of the Finance Act; Rule 5(2) of the Service Tax (Determination of Values) Rules, 2006, perused the copies of .....

hout supply of medicines, drugs, stents, implants, etc. 9. After referring the decisions of the Jharkhand High Court and Panjab and Haryana High Court, the first respondent came to the conclusion that the petitioner is a service provider, is liable to pay Service Tax on the gross amount received from the Insurance Company and the amount demanded in show cause notice is sustainable in law. In paragraph No.21 of the impugned order, the respondent has justified as to why the extendable period of li .....

fare Scheme and not an Insurance policy, no approval was obtained from IRDA and therefore, they will not fall within the definition of "Health Check up and Treatment Services". Thus, the primordial question would be whether while implementing the Welfare Scheme propounded by the State Government, if the work is entrusted to STAR would that by itself make it an Insurance Policy. The second aspect which has to be seen as to who is the insured, the specific case of the petitioner is that .....